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2025 DAILYLAW 3554 (HP)

Jagtamba v. Gian Chand (deceased)

2025-09-22

Satyen Vaidya

body2025
JUDGMENT : Satyen Vaidya, Judge This Regular Second Appeal under Section 100 of the Code of Civil Procedure (for short, the Code) has been filed against the judgment and decree dated 8.5.2015, passed by the learned Additional District Judge, Hamirpur in Civil Appeal No. 48 of 2011 (RBT No. 67 of 2013), whereby the decree dated 26.5.2011, passed by the learned Civil Judge (Jr. Division), Court No.2 Hamirpur, in Civil Suit No. 36 of 1991, has been affirmed. 2. The Civil Suit for partition of land comprised in Khata/Khatauni No. 20/20, Khasra No. 81, measuring 1 Kanal 9 Marlas and Khata/Khatauni No. 21/21, Khasra No. 80, measuring 1 Kanal, situated in Village Thunial, Tappa Bhumpal, Tehsil Nadaun, District Hamirpur (for short the suit land) was filed by Gian Chand against Braham Dass. The appellants herein are the successors of defendant Braham Dass and the respondents herein are the successors of plaintiff Gian Chand. For convenience and clarity, the parties, hereafter shall be referred to as the defendant and plaintiff respectively. 3. The learned trial Court passed the preliminary decree on 7.5.1993 in Civil Suit No. 36 of 1991 filed by the plaintiff. 4. The preliminary decree was assailed by the defendant in appeal before the learned District Judge, Hamirpur. Since, the execution or operation of preliminary decree dated 7.5.1993 was not stayed in appeal, the plaintiff had initiated proceedings before the learned trial Court for passing of final decree. 5. The appeal filed by defendant against the preliminary decree was withdrawn. 6. Final decree was passed on 26.5.2011 and hence the instant appeal. 7. This appeal has been admitted for hearing on 24.2.2016, on the following substantial question of law:- “Whether the civil suit is maintainable in respect of same cause of action where the proceeding has already been initiated with the consolidation authority (consolidation and prevention of fragmentation Act 1971)?” 8. Brief facts necessary for adjudication of appeal are that the plaintiff and the defendant were co-owners of certain land including the suit land. Proceedings under the Consolidation and prevention of fragmentation Act, 1971 (for short, “1971 Act”) were started in the village where joint land of the parties was situated. All other joint land of the parties were ordered to be partitioned vide order dated 28.7.1985 of Consolidation Officer except the suit land, which was kept joint. Proceedings under the Consolidation and prevention of fragmentation Act, 1971 (for short, “1971 Act”) were started in the village where joint land of the parties was situated. All other joint land of the parties were ordered to be partitioned vide order dated 28.7.1985 of Consolidation Officer except the suit land, which was kept joint. The order of Consolidation Officer was assailed in appeal by the defendant. 9. The appeal was decided by the Settlement Officer (Consolidation) on 1.9.1995, whereby the order of Consolidation Officer dated 28.7.1985 was set aside and the entire suit land was allotted to the share of the defendant. 10. In the meanwhile, the plaintiff had instituted Civil Suit No. 36 of 1991 before the learned trial Court on 5.2.1991, seeking the decree of partition with respect to the suit land. The preliminary decree also stood passed in Civil Suit No. 36 of 1991 on 7.5.1993 i.e. much before the date of decision in appeal by the Settlement Officer (Consolidation). 11. Though, the preliminary decree passed by the learned trial Court on 7.5.1993 in Civil Suit No. 36 of 1991 had been challenged by the defendant before the learned District Judge, Hamirpur but the said appeal was withdrawn by the defendant on 14.3.1996 on the ground that the appeal of the defendant before the Settlement Officer (Consolidation) bearing No. 66 of 1986 stood allowed on 1.9.1995 and on this basis, the suit land stood partitioned by its allotment to the defendant. 12. Another noticeable fact is that the plaintiff had assailed the order dated 1.9.1995 of the Settlement Officer (Consolidation) before the Director Consolidation. 13. On the application of the plaintiff filed before the learned trial Court for making the preliminary decree final, objections were raised by the defendant. However, the learned trial Court had appointed the Local Commissioner Mr. Bakshi Ram, retired Tehsildar to partition the suit land by metes and bounds on the spot. In compliance, the Local Commissioner had partitioned the suit land on the spot and had submitted his report before the learned trial Court. The defendant had again filed the objections to the report of Local Commissioner. Bakshi Ram, retired Tehsildar to partition the suit land by metes and bounds on the spot. In compliance, the Local Commissioner had partitioned the suit land on the spot and had submitted his report before the learned trial Court. The defendant had again filed the objections to the report of Local Commissioner. Noticeably, the main objection of defendant to the passing of final decree and also to the report of Local Commissioner was based on the right allegedly acquired by him in the suit land on the strength of the order dated 1.9.1995, passed by the Settlement Officer (Consolidation). 14. The learned trial Court in the first instance dismissed the application of the plaintiff for passing of final decree vide order dated 23.5.2000 on the ground that the suit land stood partitioned by the order of Settlement Officer (Consolidation) on 1.9.1995. 15. Order dated 23.5.2000 of learned trial Court was assailed by the plaintiff before this Court in Civil Revision No. 224 of 2000. The said petition was decided by this Court on 5.7.2010 and the order dated 23.5.2000 of learned trial Court was set aside. The learned trial Court was directed to proceed with the case in accordance with law. It was held that the Civil Court had jurisdiction to proceed with the matter in teeth of Section 57 of the 1971 Act. 16. Thereafter, the learned trial Court passed the final decree on 26.5.2011 by accepting the report of Local Commissioner. 17. In parallel proceedings under the Consolidation Act, the appeal of the plaintiff was decided by the Additional Director (Consolidation) on 21.9.2000 by setting aside the order of Settlement Officer (Consolidation) dated 1.9.1995. The order of Additional Director (Consolidation) was further challenged by the defendant before the Director Consolidation, who vide order dated 3.8.2001 affirmed the order of Additional Director (Consolidation). 18. The order of Director Consolidation became the subject matter of CWP No. 1197 of 2001 and CWP No. 19 of 2002 before this Court. The order was set aside vide judgment dated 15.3.2010, as the order passed by the Director Consolidation was found lacking in compliance with basic judicial procedure. It was found that the Director Consolidation had affirmed the order of Additional Director (Consolidation) without giving his own independent reasons. Accordingly, the matter was remitted back to the Director Consolidation for decision afresh. 19. It was found that the Director Consolidation had affirmed the order of Additional Director (Consolidation) without giving his own independent reasons. Accordingly, the matter was remitted back to the Director Consolidation for decision afresh. 19. The Divisional Commissioner, Mandi exercising the powers of Director Consolidation under Section 54 of the Consolidation Act vide order dated 21.10.2010 decided the appeal of defendant and the order dated 1.9.1995 of Settlement Officer (Consolidation), Hamirpur was upheld. He directed the implementation of order dated 1.9.1995 of Settlement Officer (Consolidation). 20. The aforesaid order dated 21.10.2010 passed by the Divisional Commissioner, Mandi was further assailed before this Court in CMPMO No. 434 of 2010. The said petition was allowed by this Court on 14.3.2011. The order passed by the Divisional Commissioner, Mandi was set aside by observing as under:- “6. The respondent No.1 has not considered the question of maintainability of the petition. It has been argued on behalf of the petitioner that copy of judgment dated 15.7.2010 in C.R. No.224 of 2000 was submitted by the petitioner to respondent No.1 so as to decide the issue of maintainability but despite that the respondent No.1 has not decided the question of maintainability of the petition as directed in judgment dated 15.3.2010. The impugned order indicates that the question of maintainability of the petition under Section 54 of the Act has not been decided by respondent No.1. 7. In view of above, the petition is allowed. The order dated 21.10.2010 passed by respondent No.1 Divisional Commissioner, Mandi exercising the powers of Director Consolidation in Case No.18/10 is set aside with a direction to respondent No.l to decide the petition afresh in accordance with law. The parties are directed to appear before respondent No.1 on 29.3.2011.” 21. The Divisional Commissioner, Mandi vide order dated 25.7.2011 again affirmed his earlier order. The appeal of defendant was allowed and the order dated 1.9.1995, passed by the Settlement Officer (Consolidation) was affirmed. 22. The order dated 25.7.2011, passed by the Divisional Commissioner, Mandi again became the subject matter of CMPMO No. 311 of 2011 filed before this Court. The said petition was decided on 13.9.2012 in following terms:- “5. Though these observations have been made with respect to Hon’ble Judge of High Court but apply Proprio Vigore to the present case. 22. The order dated 25.7.2011, passed by the Divisional Commissioner, Mandi again became the subject matter of CMPMO No. 311 of 2011 filed before this Court. The said petition was decided on 13.9.2012 in following terms:- “5. Though these observations have been made with respect to Hon’ble Judge of High Court but apply Proprio Vigore to the present case. What I find is that the statutory authority which is the Divisional Commissioner has also followed the same course of conduct. I find this most unfortunate and exercise of power contrary to the statutory purpose for which it has been assigned. Be that as it may. I find from the record that the preliminary decree passed on 26.5.2011 by the learned Civil Judge (Junior Division), Court No.2, Hamirpur has been finalized in terms of what is incorporated therein. That decree has not been challenged by the parties and has attained finality. In this view of the matter, this petition is disposed of. Order of the Divisional Commissioner is quashed and set aside and he is restrained from dealing with the matter in any manner. Petition stands disposed of. No order as to the costs.” 23. Thereafter, review petition was filed before this Court R.P. No. 197 of 2012, seeking review of the judgment and decree dated 13.9.2012 in CMPMO No. 311 of 2011, which was disposed of in the following terms:- “At the time when this petition was disposed of I had observed that I find from the record that the preliminary decree passed on 26.5.2011 by the learned Civil Judge (Junior Division), Court No.2, Hamirpur has been finalized in terms of what is incorporated therein. That decree has not been challenged by the parties and has attained finality. In this view of the facts, the petition was disposed of. It has now been brought to my notice that in fact an appeal is pending against that decree and its execution has been stayed. Copy of the order dated 2.9.2011 passed by the learned District Judge, Hamirpur has been placed on the record of the case. In these circumstances, the words “I find from the record that the preliminary decree passed on 26.5.2011 by the learned Civil Judge (Junior Division), Court No.2, Hamirpur has been finalized in terms of what is incorporated therein. That decree has not been challenged by the parties and has attained finality. In these circumstances, the words “I find from the record that the preliminary decree passed on 26.5.2011 by the learned Civil Judge (Junior Division), Court No.2, Hamirpur has been finalized in terms of what is incorporated therein. That decree has not been challenged by the parties and has attained finality. In this view of the matter, this petition is disposed of,” shall read as “preliminary decree has been passed on 26.5.2011 by the learned Civil Judge (Junior Division), Court No.2, Hamirpur pertaining to the partition of the land and this decree is now in appeal before the learned District Judge, Hamirpur. The rights of the parties shall be governed by the ultimate decision in this decree. The petition stands disposed of”. Registry is directed to carry out necessary Corrections. Review petition stands disposed of.” 24. I have heard learned counsel for the parties and have also gone through the record carefully. 25. The learned District Judge, while passing the impugned judgment and decree had noticed the following grounds, raised before the said Court by the defendant:- (I) The suit land was agricultural land and thus, the Civil Court had no jurisdiction to partition the same. (II) At the time of filing of Civil Suit No. 36 of 1991, the village was under consolidation process and thus partition of only two field numbers i.e. the suit land could not have been singled out. (III) By way of partition of the suit land, fragmentation of suit land had been done against the provisions of Section 12 of the 1971 Act. (IV) Suit land was allotted to the defendant vide order dated 1.9.1995 passed by the Settlement Officer (Consolidation) and thus, it could not have been ordered to be partitioned by the Civil Court. (V) Though, the order passed by the Divisional Commissioner had been set aside by this Court but the order dated 1.9.1995 passed by the Settlement Officer (Consolidation) remains intact. (VI) Civil Court had committed error by getting the partition of suit land conducted through a retired revenue officer, whereas the matter should have been referred to the Collector of the District. 26. The learned District Judge after dealing with each and every issue raised before him decided them against the defendant. (VI) Civil Court had committed error by getting the partition of suit land conducted through a retired revenue officer, whereas the matter should have been referred to the Collector of the District. 26. The learned District Judge after dealing with each and every issue raised before him decided them against the defendant. As regards the objection as to the nature of the suit land being agricultural, the learned District judge has proceeded to hold it otherwise, on the basis of admission made by the defendant in the written statement filed before the learned trial Court in Civil Suit No. 36 of 1991. The defendant in his written statement had claimed possession on the entire suit land by alleging that he had raised the construction of his residential house and kitchen garden thereon. The learned District Judge, thus, drew an inference that according to the defendant himself, the suit land was not agricultural land but was “Abadi”. Reliance was also placed on the copy of jamabandi placed on record of Civil Suit in which also, the suit land was not recorded as agricultural land. 27. Another factor that weighed with the learned District Judge was the reply filed by the defendant to the application of the plaintiff seeking passing of final decree in which also, the defendant had categorically stated that the suit land was in the nature of “Abadi”. 28. Having gone through the record, I do not find any illegality or perversity in the findings so recorded by the learned District Judge with respect to the nature of the suit land and thus, no interference is required by this Court. 29. Additionally, it is admitted aspect of the matter that the preliminary decree dated 7.5.1993 passed by the learned trial Court in Civil Suit No. 36 of 1991 had attained finality. The appeal filed by the defendant against the said decree had been withdrawn on 14.3.1996. In this view of the matter, the findings recorded by the learned trial Court while passing the preliminary decree could not be assailed by the defendant in later proceedings, be it the proceedings for framing final decree or the appeal preferred by the defendant against the final decree passed by the learned trial Court. The legal bar in this behalf is expressly created by Section 97 of the Code, which read as under:- “97. The legal bar in this behalf is expressly created by Section 97 of the Code, which read as under:- “97. Appeal from final decree where no appeal from preliminary decree.—Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.” 30. Thus, the defendant could not have raised the question as to the nature of the suit land in an appeal filed against the final decree, when the appeal preferred by him against the preliminary decree was withdrawn without seeking any adjudication on merits. 31. The learned District Judge has further held that the final decree passed by the learned trial Court could not be faulted only for the reasons that the Local Commissioner appointed by the Court was retired Naib Tehsildar. The learned District Judge has held that firstly the defendant had not raised any objection as to the appointment of retired Naib Tehsildar as Local Commissioner. It has also been found that the Local Commissioner being retired revenue officer was an expert in the field and while preparing his report had also prepared the field book and had depicted the result of partition in the “Aks” filed with the report. It was also found that the defendant had also not challenged the report of Local Commissioner on the ground sought to be raised in the appeal. 32. The view formed by the learned District Judge is based on reasons borne from the record. Moreover, the defendant had not shown any illegality having been done by the retired Naib Tehsildar. There was no allegation of bias or incompetence against him. 33. The learned District Judge further has correctly upheld the jurisdiction of the Civil Court to pass the decree for partition in respect of the suit land. Reliance was placed on the judgment passed by this Court on 5.7.2010 in Civil Revision No. 224 of 2000 along with CMP No. 346 of 2006, whereby the order dated 23.5.2000, passed by the learned trial Court had been set aside by holding that the Civil Court had jurisdiction to proceed with the matter in the teeth of Section 57 of the 1971 Act. The said order having attained finality, the learned District Judge has committed no wrong in placing reliance thereupon coupled with the fact that even the order passed by the Divisional Commissioner, Mandi under the 1971 Act had been set aside, who in turn had affirmed the order dated 1.9.1995, passed by the Settlement Officer (Consolidation). It was specifically held vide order dated 12.10.2012 passed by this Court in Review Petition No. 197 of 2012 that the rights of the parties would be governed by the ultimate decision in the decree passed by the Civil Court. 34. The learned District Judge has rightly construed the aforesaid order passed by this Court to mean that the order dated 1.9.1995 of the Settlement Officer (Consolidation) had no applicability in the teeth of the orders passed by this Court. 35. Even otherwise, once the suit land was admitted to be the ‘Abadi’ land by the defendant himself, coupled with the fact that the preliminary decree had attained finality, the defendant could not be allowed to dispute the factum as to nature of the suit land. This fact alone was sufficient to confer the jurisdiction upon the Civil Court to pass the decree for partition in respect of the suit land. That being so, the order dated 1.9.1995, passed by the Settlement Officer (Consolidation) or other proceedings taken before the authorities under the Consolidation Act were meaningless. The substantial question of law is answered accordingly. 36. In light of above discussions, there is no merit in the appeal and the same is dismissed. The judgment and decree dated 8.5.2015, passed by the learned Additional District Judge, Hamirpur in Civil Appeal No. 48 of 2011 (RBT No. 67 of 2013), affirming the decree dated 26.5.2011, passed by the learned Civil Judge (Jr. Division), Court No.2 Hamirpur, in Civil Suit No. 36 of 1991, is further affirmed. 37. Decree Sheet be accordingly prepared. 38. The appeal is disposed of. Pending applications, if any, also stand disposed of. Record be sent back forthwith.